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Attachment 9. Army Corp of Engineers letter – May 3, 20174t, DEPARTMENT OF THE ARMY ST.PAUL DISTRICT,CORPS OF ENGINEERS 180 FIFTH STREET EAST,SUITE 700 wN ST.PAUL,MN 55101-1678 p1 1,1p; M MAY 0 3 2017 REPLY TO ATTENTION OF irc"'P' REGULATORY BRANCH Regulatory File No. 2015-03075-RMM Kjolhaug Environmental Services do Melissa Barret 26105 Wild Rose Lane Shorewood, Minnesota 55331 Dear Ms. Barrett: The St. Paul District, Corps of Engineers, is continuing to evaluate Level 7 Development's proposal to discharge fill material into waters of the U.S. for the purpose of constructing a residential and commercial development known as Avienda. The project site is located in Section 23, Township 116 North, Range 23 West, Carver County, Minnesota. We are enclosing, for your information, correspondence we received as a result of our public notice which expired on April 3, 2017. The only comments we received were from the Environmental Protection Agency(enclosed). It is our policy to give you the opportunity to respond to these comments. Any response should be sent to this office so that any additional information, explanations or analyses responsive to those comments can be included in our administrative record and considered in our final evaluation of the permit application. Your project does not require access to, or proximity to, or siting within a wetland to fulfill its purpose. Therefore, it is incumbent upon you to clearly rebut the presumption that upland sites are available and would be less environmentally-damaging than your proposal. The fact that you may not own the upland site is not, by itself, sufficient to rebut this presumption. As we discussed at our April 6, 2017 meeting, we must determine whether your project as proposed complies with the Section 404(b)(1) Guidelines of the Clean Water Act (Guidelines). These Guidelines require that an alternatives analysis be conducted to first determine whether adverse effects on the aquatic ecosystem can be avoided, then whether potential practicable alternatives' would result in less adverse effects on the aquatic ecosystem. By law, the Least Environmentally Damaging Practicable Alternative (LEDPA)2 is the only alternative which can be permitted by the Corps. The burden of proof to demonstrate compliance with the 404(b)(1) Guidelines rests with the applicant; where insufficient information is provided to determine compliance, the Guidelines require that no permit be issued. The information provided to date in your permit application is insufficient to demonstrate that the project, as proposed, complies with the Guidelines. The following information is required for us to determine whether Level 7 Development's proposal is compliant with the Guidelines. 1) Under the Guidelines we have the responsibility of using a reasonably and objectively formulated and stated project purpose after taking into account the purpose and need provided by the applicant. Under the Guidelines we cannot allow an applicant to improperly 1 The 404(b)(1)Guidelines state that an alternative is practicable if it is available and capable of being done after taking into consideration cost,existing technology,and logistics in light of overall project purposes(40 CFR 230.10(a)(2)). 2 The LEDPA is the alternative that meets the project purpose(s),is available to the applicant(practicable),and has the least amount of impact to aquatic resources,without having other significant adverse impacts to the natural environment. Regulatory Branch (File No. 2015-03075-RMM) restrict the project's purpose and need. If the purpose and need statement is too restrictive it limits the range of possible alternatives. At this time we do not have enough information to define the overall project purpose which drives the required alternatives analysis process. Please provide information that documents whythe individual project components residential and several different types of commercial development) are interdependent. We presume they are not because the open market has shown they are not interdependent. Please note that this is a crucial component of our review and will dictate whether the alternatives analysis you provided demonstrates compliance with the Guidelines. If the information you provide does not substantiate the interdependent needs then we will ask for additional information or determine the project does not comply with the Guidelines. We suggest you coordinate your response prior to submitting the information we are requesting below. a) Please note that although the City of Chanhassen (City) has provided a definition for what they envision a mixed use lifestyle center includes in their 2030 Comprehensive Plan that alone is not enough to substantiate the need for those project components to be co-located. 2) The application states a property under single ownership or conglomeration and zoned as a Planned Unit Development (PUD) is required for a viable project. According to Carver County's online property information, the proposed project is a conglomeration of five separate parcels all of which are zoned A2-Agricultural Estate District. It appears the applicant purchased five separate parcels not zoned PUD. If this site is able to be re-zoned to a PUD, it is presumed that other sites or a conglomeration of sites can also be re-zoned to a PUD. Please provide substantiating evidence that this is the only parcel in the City that can be re-zoned to a PUD. If you cannot substantiate that claim then please expand your alternatives analysis to consider other less environmentally damaging sites which may not be owned My the applicant or currently zoned as a PUD. 3) Section 3.1 of the application discusses standards and guidelines identified by the Chanhassen Zoning Ordinance. We want to note that while the City's plan envisions these features integrated into a single development in a single location; their desired outcome cannot drive the alternatives analysis required by the Guidelines. You will need to substantiate the interdependence of these various features in order for the project to pass the Guidelines. 4) Based on the information in the application, Table 1 in Section 3.1 appears speculative as there is no supporting evidence included in the application as to the minimum acreages listed. Furthermore, there are no tenants listed to support what the minimum acreages need to be. Please provide supporting evidence for the minimum dimensions needed for each individual component. This should also include the minimum area of each retail/office/residential development/etc. and include minimum attendant features (i.e. parking spaces, stormwater treatment areas, etc.). 5) As detailed above, the alternatives analysis provided is insufficient to determine compliance with the Guidelines. Once we have determined the overall project purpose and need, you may have to complete a new off-site alternatives review, which could include reviewing each individual component on alternative sites. Please note that once minimum size requirements are set(which we need to concur with based on the supporting information provided)for each component there is no need to review sites that do not meet that size requirement (i.e. are smaller). When updating your alternatives analysis please consider the following comments we have after reviewing your current alternatives analysis: Page 2of4 Regulatory Branch (File No. 2015-03075-RMM) a) When assessing the potential aquatic resource impacts on other sites you should provide evidence documenting the amount and location of aquatic resources present on each site. This should include the methods used for delineating those resources remotely if you did not obtain site access, as well as a comparison of your final delineation on each site in comparison to the National Wetland Inventory maps. This should also be conducted for tributaries with a comparison made to the National Hydrography Dataset and your final delineation of any tributaries. b) During our meeting representatives from the City stated they would provide us a statement in writing that the Bluff Creek Overlay District (BCOD) cannot be impacted. It appears your preferred alternative will result in impacts to the BCOD (-2.64 acres). If the City has the ability to be flexible on impacts within the BCOD then other sites that may have less aquatic resource impacts but more BCOD impacts should be explored. c) When drafting your alternatives you should have one clear and concise set of screening criteria used to evaluate alternatives against one another. In your application you used three different sets of screening criteria. The three sets of criteria used are found in Sections 3.1, 3.2, and 3.4. Please consolidate your list and include one set screening criteria used to compare alternatives to one another. d) The no action alternative for our review is considered to be the project that could occur without a Corps permit. Please update the no action alternative to describe what could take place without discharging dredged or fill material into waters of the U.S. The no action alternative can't be dismissed for not meeting the applicant's purpose and need. The no action alternative should be evaluated for what development could take place without a permit. e) Additional on-site configurations should be considered and compared to the screening criteria. Configurations could include apartments located on top of commercial developments or removing certain portions of the project all together or moving certain components to other sites. Any configuration that has less environmental damage and still meets the purpose and need could be considered the LEDPA. While not required to demonstrate compliance with the Guidelines, the following information is necessary to make a permit decision. 6) Please clarify the excavation impacts identified in your application (Wetland 6: 0.2514 acre and Wetland 8: 0.0844 acre). While the Corps does not regulate excavation impacts that do not result in a discharge, based on our experience, it is likely that the proposed excavations will result in a discharge of dredged and fill material. 7) Please provide detailed engineering plans showing all components of the project in relation to impacts to waters of the U.S. Please include both plan view and cross sections. At this time we have not evaluated your compensatory mitigation plan. We understand you have provided a compensatory mitigation statement that proposes to purchase wetland credits from three different compensatory mitigation banks. As we work through our permit process we will reach out to you about the feasibility of your compensatory mitigation proposal. Page 3 of 4 Regulatory Branch (File No. 2015-03075-RMM) If you have any questions, please contact me in our St. Paul office at 651) 290-5286 or ryan.m.malterud@usace.army.mil. In any correspondence or inquiries, please refer to the Regulatory file number shown above. Sincerely, yan Malterud Senior Project Manager cc: Andi Moffatt (LGU) Bill Wilde (MPGA) Marco Finocchiaro (EPA) Ben Meyer(BWSR) Page 4 of 4